Foreign Law Ascertainment

When the International Commercial Court applies foreign law in trying a case, it may find law in the following ways:

(1) provided by the parties;

(2) provided by the legal expert from China or abroad;

(3) provided by the institution rendering law finding services;

(4) provided by the member of the International Commercial Expert Committee;

(5) provided by the central authority of the other contracting party that has entered into a judicial assistance treaty with China;

(6) provided by the Chinese Embassy or Consulate in the relevant country;

(7) provided by the Embassy of the relevant country in China;

(8) other reasonable ways to find foreign law.

The materials and expert opinions on foreign law provided in one or more of the above ways shall be presented during the hearing in accordance with the law and the parties shall be afforded a full opportunity to be heard.

The Supreme People’s Court is in the course of constructing a comprehensive digital database on foreign law, legal experts and caselaw using big data technology. Such database will facilitate and broaden the means by which the Court will be able to ascertain the substance and application of foreign laws, especially those countries along the “Belt and Road” initiative. At present, the Supreme People's Court has established four bases for researching and ascertaining foreign laws, namely Shenzhen Qianhai Cooperation Zone People’s Court，Benchmark Chambers International, the China University of Political Science and Law, and the Southwest University of Political Science and Law.

As one of the research base under the Supreme People’s Court, Foreign Laws, Shenzhen Qianhai Cooperation Zone People’s Court (Qianhai Court) tightly embraces the strategic development goals set down by the Belt and Road initiatives. The Qianhai Court is focused on achieving the Belt and Road objectives of internationalizing the Free Trade Zone and to deepen collaborations amongst the Guangdong Province, Hong Kong and Macau. The Qianhai Court achieves these objectives through deep research of the relevant foreign laws and exploring institutional innovations in the application of such laws. Recently, the Qianhai Court published a research report on the Ascertainment of Foreign law Concerning Foreign-related Cases Including Hong Kong, Macau and Taiwan-related Cases, a project conducted with various universities. It becomes a pioneer in the national court system for issuing Methods of Shenzhen Qianhai Cooperation Zone People 's Court on Ascertainment of Foreign Law. The report has exerted far-reaching and positive influence on how the courts handle foreign related disputes. At present, the Qianhai Court also pays high attention to facilitating judicial communications amongst different courts on issues relating to private international and interregional laws. The Qianhai Court held the “Law Ascertainment and Application Seminar” organized by the SPC, where Higher People’s Courts, courts in Free Trade Zones, universities and law ascertainment institutions made a in-depth discussion on the current problems encountered in academic research and judicial practice, and on the future reform attempts.

Qianhai Court has jurisdiction over all first-instance foreign, Hong Kong, Macau and Taiwan-related commercial cases within Shenzhen. Such caseload takes up 56 per cent of the total cases in Shenzhen. As such, the Qianhai Court has accumulated an abundance of judicial experience in applying and ascertaining foreign laws.

On September 20th 2015, Benchmark Chambers International (“BCI”) was authorized by SPC to be SPC’s Base for Discerning Hong Kong, Macau, Taiwan and Foreign Laws. BCI is an NPO established in 2014 supported and supervised by the Bureau of Justice of Shenzhen Municipality. The statutory bases of BCI’s establishment is Article 52 of the Regulations on Qianhai Shenzhen-Hong Kong Modern Service Industrial Cooperation Area of Shenzhen Special Economic Zone, where the provision states, “It is resolved to encourage Shenzhen-Hong Kong cooperation in establishing the law ascertainment mechanism……” (cited from Global China Law). The Bureau of Justice of Shenzhen Municipality, being the implementation under the regulation, established BCI as a foreign law ascertainment platform in order to carry out the task more efficiently and professionally. BCI is privately-run and supported by the government. This “innovation” was listed as one of the first institutional innovations of Guangdong Free-Trade Area. The innovation of BCI is demonstrated in three ways: First, this is the first occasion in China where the mechanism of ascertaining foreign law is institutionalized by local regulations of the Shenzhen Special Economic Zone. The regulatory foundation of BCI is seen as a pioneer in China. Second, BCI is an institutional breakthrough in that it is the first NPO to be supported by the judicial administrative organ carrying out a public legal service function. Third, as the first legal service provider in China focused on foreign law ascertainment, BCI provides a platform that broadens the scope of legal service for judicial administrative authorities and plays a role in assisting foreign-related litigation, Chinese companies reaching out to the international community, and improving international legal environment, amongst others benefits.

BCI is a small institution with a large platform. It provides foreign law ascertainment services working with legal experts and legal resources databases at present, BCI collaborates with 20 higher education institutions and research institutes, and 136 legal institutions all around the world, including over 1,600 individual experts. With an ever-increasing network of foreign law experts, BCI is able to meet a wide range of demands concerning foreign law ascertainment. Under the support of the Authority of Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone of Shenzhen Municipality, BCI jointly undertakes with China Law Press the project of Legal Map of “Belt and Road”—the first large Chinese legal database serving the Belt and Road Initiative. This initiative collects the laws and regulations of countries and regions along “the Belt and Road” initiative relating to trade and investment and translates the relevant materials into Chinese. BCI provides services across the whole nation. Its foreign law ascertainment reports have been admitted and accepted by many Chinese courts, including Shenzhen Intermediate People’s Court, Dongguan Intermediate People’s Court, Wuhan Intermediate People’s Court, Liuzhou Intermediate People’s Court, Urumchi Intermediate People’s Court, etc. Judgments of these cases are available in China Judgements Online. Besides courts, BCI also provide foreign law ascertainment service to arbitration institutions, lawyers, enterprises, government bodies and others.

In the past, it was difficult to ascertain foreign law and the process was time-consuming with limited resources dedicated for such purpose. However, with BCI’s access to extensive legal resources and standardized process management, the process of foreign law ascertainment for a particular case can typically be completed within 2 months. More than 99 countries and regions are covered, including America, Canada, Australia, Britain, Brazil, Argentina, Singapore, Malaysia, Israel, Cayman Islands, Kenya, Hongkong SAR, Macau SAR. The laws to be ascertained include company law, criminal law, land law, guarantee law, contract law, FDI law and so on.

3.The China University of Political Science and Law (Research Base of Supreme People’s Court for Ascertaining Foreign Law)

SPC - CUPL Judicial Research Base for Belt and Road Initiative was established in 2015. Based on the School of International Law of CUPL, the institution consists of 48 experts, who are the major researchers in International Law and Comparative Law at CUPL. The Team features 18 professors and 26 associate professors in the field of International Public Law, International Economic Law, Private International Law (including International Civil Procedure Law), Comparative Law or National Law. Most of the experts hold a Ph.D. degree from well-known universities at home or abroad. The faculty members’ age, academic credentials, and professional titles are balanced and well structured. The Base’s core mission is to build a high-level think tank and provide intelligence support for the “Belt and Road Initiative” (BRI), with a special focus on the promotion of international dialogue on international rule of law.

4.The Southwest University of Political Science and Law (Fourth Civil Division of Supreme People’s Court - SWUPL Base for Research of Laws of ASEAN Countries)

The Fourth Civil Division of Supreme People’s Court - SWUPL Base for Research of Laws of ASEAN Countries (“The Base”) is co-founded by the Fourth Civil Division of SPC and SWUPL. The Base is supported by the China-ASEAN Legal Research Center. The Base has several distinctive features:

(i)The research team includes over 100 researchers from all ten ASEAN countries and many Chinese scholars specializing in various ASEAN countries’ laws.

(ii)Professional database. The Base has established a China – ASEAN Legal literature Database, covering laws related to the ASEAN–China Free Trade Area (ACFTA) and ASEAN countries' legal policies, practices and research literature.

(iii)International journal. Judiciaries and officers from ASEAN countries work as advisory committees and editorial board members to assist the publication of the China-ASEAN Law Review (an international journal aims to promote the exchange of legislation and practice research results between China and ASEAN). Up till now, two volumes of the journal have been published and it received positive academic praise and social reputation within China and amongst ASEAN countries.

(iv)Organization and participation of major international academic conferences on a regular basis.

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.